TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 5, 2012
RE: Rule 704, N.D.R.Ev., Opinion on an Ultimate Issue
Form and style amendments to Rule 704 consistent with the 2011 federal amendments are proposed. The amendments are not intended to change any result in any ruling on evidence admissibility.
The federal rule has language that was not made part of the North Dakota Rule. This language is included in the proposal in subdivision (b) for the Committee's discussion. The Committee previously considered this language in 1986 and again in 2006, rejecting it both times. An excerpt from the April 2006 minutes is attached for review.
The language in Fed.R.Ev. 704(b) was added to the rule in accordance with the Insanity Defense Reform Act of 1984. The Court discussed this provision briefly in State v. Schmidkunz, 2006 ND 192, remarking on the Committee's decision not to recommend this language for Rule 704. The Court also indicates that North Dakota law does allow expert testimony that may embrace the ultimate issue in criminal cases. A copy of Schmidkunz is attached.